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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri N. V. Vasudevan, JM & Dr. A. L. Saini, AM]
Date of hearing: 31.01.2017 Date of pronouncement: 22.03.2017 For the Revenue :Shri S. Venkatramani, Addl. CIT, Sr. DR For the Assessee: Shri S. M. Surana, Advocate ORDER
Per Dr. A. L. Saini, AM:
The captioned appeal filed by the Revenue and the Cross Objection filed by the assessee, pertaining to Assessment Year 2010-11, aredirected against the order passed by the Ld. CIT(A)-XXXIII Kolkata, in appeal No. 6/CIT(A)-XXXIII/JCIT R-52,Kol/13-14 dated 31.01.2014, which in turn arises out of assessmentorder passed by the JCIT, Range- 52, Kolkata u/s.143(3) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”), dated 23.03.2013.
The brief facts of the case qua the assessee are that the assessee has filed its returnof income for AY 2010-11 on 25-09-2010 showing total income of Rs.59,90,087/-. The Return of Income was duly processed u/s. 143(1) of the Act. Thereafter, the assessee’s case was selected for scrutiny u/s. 143(2) of the Act and the AO has completed the assessment by making the addition of Rs.3,27,04,943/- on account of bogus hawala transaction.
Aggrieved against the said order of the AO, the assessee filed an appeal before the Ld. CIT(A), who has deleted the addition made by the AO by observing the following:
“I find from the reasons given by the Assessing Officer and the submissions made by the appellant that the Assessing Officer had not brought sufficient material record to reject the purchases made by the appellant from M/s. Shibdoot Traxim Pvt. Ltd. The allegation that M/s. Shibdoot Trexim Pvt. Ltd. was a Hawalaoperator was not proved by the Assessing Officer. The sales made to the appellant were confirmed by M/s. Shibdoot Trexim Pvt. Ltd. which were also evidenced by its audited books of account. The inability of Shri Sanjoy Kasera to specify the quantity of leather that a cow may be expected to deliver can be explained by the fact that he is a trader and, as stated by the appellant, all cows cannot be expected to deliver the same quality and amount of leather. The Assessing Officer's remark that the offices of M/s ShibdootTrexim Pvt. Ltd and Shri Sunil Surana are in the same office are irrelevant to the issue at hand. The Assessing Officer has also not found anything amiss with the payments made by way of cheques by the appellant for making the purchases from M/s. Shibdoot Trexim Pvt. Ltd. The invoices and audited financial statements and other details produced by M/s. Shibdoot TreximPvt. Ltd. are prima-facie evidence of the purchases made by the appellant in the context of unequivocal confirmation by Shri Sanjoy Kasera before the Assessing Officer that he had sold the leather to the appellant and cannot be brushed aside by simply saying that tempo operators had been paid in cash and the M/s. ShibdootTrexim Pvt. Ltd.'s own purchase bills were not submitted for verification. I, therefore, hold that there is no material on record to prove that the purchases from M/s. Shibdoot Trexim Pvt. Ltd. were bogus hawala purchases and the appellant had indulged in inflating and manipulating the consumption figures. In Dhakeswari Cotton Mills Ltd. v. CIT [1954] 26 ITR 775 (SC), Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 (SC)Umarcharan Shaw & Bros. v CIT(1959) 37 ITR 271(SC) and LalchandBhagatAmbica Ram v. CIT [1959] 37 ITR 288 (SC), it had clearly been held by the Apex Court that there must be something more than mere suspicion in support of an assessment and mere suspicion cannot take the place of proof for the purpose of passing an order of assessment. Hence, the addition of Rs.3,27,04,943/- on account of bogus hawala purchases is deleted.”
Aggrieved from the order of the Ld. CIT(A), the Revenue is in appeal before us and has taken following grounds of appeal: “1) That on the facts and in circumstances of the case the CIT(A) erred in deleting the addition of Rs.3,27,04,943/- on account of bogus hawala purchase. 2)That on the facts and in circumstances of the case the CIT(A) has failed to appreciate that the assessee did not produce the actual samples of the various items exported to escape the exact computation of the material consumed. He also failed to appreciate that the assessee relied upon the self serving samples to support its Inflated consumption figures and relied upon a report of an expert of a footwear design while the goods in question were travel bags and ladies purses. 3) The CIT(A) failed to appreciate that the documents relied upon by the assessee to claim the Hawala purchases as genuine were self serving documents and merely because the assessee claimed to have purchased by cheques does not make a transaction genuine. The assessee's claims of having made such a huge purchase and that of High quality Export leather from a person who knows nothing about leather and has NIL stock of leather in his books of A/c and could not produce any evidence to confirm the genuineness of his purchase and sale to the assessee, cannot be stated to be mere suspicion as very naively accepted by the CIT(A).” 4) The appellant craves leave to add to, alter or modify and one or all of the grounds of appeal mentioned above.
4.1 The Ld. AR for the assessee has submitted that the AO has claimed that Shri Sanjoy Kasera is in the Hawala business without any basis and evidence. M/s. Shibdoot Trexim Pvt. Ltd. complied with the AO’s notice and confirmed that it had made the sales to the assessee. It appears from the papers enclosed that the supplier had handed-over copy of its audited financial accounts and I. T. return for AY 2010-11 to the Inspector assisting the AO and had submitted letter dated 15.03.2013, copies of its sale bills, copies of signed challans and carries outward ledger showing tempo fare debited in its books. M/s. Shibdoot Trexim Pvt. Ltd. was incorporated in 1994 and was assessed to tax. In the income tax assessment finalized thereafter, the assessee had never been treated as a bogus Hawala operator in its income tax assessments. The assessment for AY 2010-11 was also finalized in its case in which the AO concerned accepted the purchases and sales declared by M/s. Shibdoot Trexim Pvt. Ltd. There was no basis to conclude that the assessee would have to compromise with the quality of the leather products while purchasing from M/s. Shibdoot Trexim Pvt. Ltd. The price at which purchases were effected from M/s. Shibdoot Trexim Pvt. Ltd. were the same as those in respect of M/s. Navin Leather, another supplier referred to by the AO in the assessment order and the payment intervals were also similar. The purchases are supported by invoices, which have been entered into the stock register and payments were made by cheques. No defect was detected in the books of account, bills and invoices produced by the assessee. The Ld. AR further submitted that as far as the genuineness of the purchase from M/s.Shibdoot Trexim was concerned, it is submitted that all the purchases were supported by bills and vouchers and entire payment was made by account payee cheques. The purchases made from them was entered in the raw-material register (produced before the AO) and consumption thereof was also recorded in the daily job sheet issued to the labour and the raw material register and finished goods received on consumption of such raw materials was duly recorded in the finished goods stock register as explained earlier. The said party in response to summon u/s 131 confirmed the sale made by them to the assessee. The AO has made the presumption that the said party was bogus hawala operator is not based on any evidence but the product of his own mind which is based on guess work. In so holding the said party as bogus hawala operator, he has compared him with Hassan Ali Khan and some Taparia of Kolkata. It is not known where
4 CO No.50/Kol/2014 Balaji Export Corporation, AY. 2010-11 from the AO has concluded Mr. Sanjay Kasera, Director of the Company suffered huge losses and only hawala business gave him affluence. The said party duly filed that audited accounts before the AO. The party complied with all the requisitions made as is apparent from the copies of the letters filed by the said party in response to notice u/ s 131. The said company was incorporated in the year 1994 and is assessed to tax. Thereafter number of assessment of the said company have been completed but in none of the assessment orders there is a finding that the company was bogus Hawala Operator. From the balance sheet it is also apparent that the turnover of the said party was over Rs. 18 crores with capital and reserves of over 1.11 crores. The party also enjoyed bank overdraft limit of about 1 crores. The said party also filed return declaring an income of Rs. 7.75 lakhs and paid tax of Rs. 2.50 lakhs. The purchase and sale by Sri Kasera was duly declared by him inhis accounts and was duly accepted by the AO assessing him when the assessment of the 'said party was completed u/s 143(3) for this particular year. Needless to repeat that in response to notice u/s. 131 the party confirmed having sold the goods to the assessee. The party also accepted that he transported the goods to the assessee. The AO also concluded that all the purchases were made by the assessee from Calcutta Leather Complex which is not a fact as is apparent from the details of purchase along with addresses filed before the Ld AO. There was also no basis to conclude that the assessee compromised with the quality ofthe leather products since the assessee had to maintain quality in view of international commitments. Not only that at onepoint the AO has concluded that the assessee purchased the raw material from these persons who have no idea about leather at 20% higher price. The AO has forgot to see that the purchase from Navin Leather and M/ s. Shibdoot was at the same rates and the payment was also made in similar intervals. In fact all these remarks of the AO clearly goes to point out that it was first decided to make the addition and then the reasons were incorporated to justify the addition. When the purchase is supported by invoices, payment was made by cheque and same was entered into the stock register, and all these papers including bank's statements and bills and invoices raised by said Shibdoot were produced by the assessee, no fault was found in the same, no addition can be made as has been held in the case of Shri Rama Multiteck Ltd Vs ACIT (92 TTJ page 568) as well as in the case of A.M. Kantilal Exports reported in 330 ITR 185.
The AO has made the addition in spite of the fact that all the evidences were produced to show the correct consumption as per the books of accounts. It is submitted that the AO has accepted the books of accounts and has not rejected the same or applied the provisions of sec. 145 rejecting such books. When the-books of accounts are accepted there was no question of treating the consumption as excess. It has been held in the following cases that no addition can be made in the trading account to enhance the rate of G.P and conclude that there was excessive consumption. Ref in this connection is invited to the judgement in the case of Jai Pulse Mills reported in 39 SOT 312, as also in the case of Milap Textiles reported in 86 TTJ 1125 holding that no addition can be made on hypothetical calculation of consumption. It has been also held in the following cases that no addition can be made unless the books of accounts were rejected and fault was found by the AO in such books of accounts. C.I.T. Vs. Sulabh Marble Pvt Ltd. Rajasthan reported in 165 Taxman 258 S.R.K. Tea Processor, Calcutta ITAT Payare Lal Mittal, Gouhati, 291 ITR 214 CIT Vs. Mascot India Tools and Forging Pvt. Ltd.322 ITR 116(Allahabad), CIT Vs Ludhiyana Steel Rolling Mills Ltd 166 Taxman 20(P &H), Jai Pulse Mills, D-Bench, Ahmedabad 39 SOT 312, In view of the above facts that all the gross profit rate declared by the assessee is quite fair and reasonable, books of accounts were maintained in accordance with law, stock registers at all stages was maintained to show the consumption back by evidences of such consumption, the party from whom purchase was made confirmed such sale, payment to them was made by accounts payee cheque, the books having not been rejected, the addition is not at all justified and may be deleted.
4.2. Ld. DR for the Revenue has submitted before us that the assessee under consideration does not have any godown to store the goods. The assessee has a zero stock and does not have stock in hand, therefore, without stock and without godown how the assessee has achieved so big turnover.
6 CO No.50/Kol/2014 Balaji Export Corporation, AY. 2010-11 4.3 Having heard the rival submissions and perused the material available on record, we are of the view that there is merit on the submission of the assessee, as the proposition canvassed by the Ld. AR for the assessee are supported by the facts narrated by him.The Ld. AR has submitted that the assessee has been maintaining stock register (paper book pages 15 and 16). The Ld. AR has also shown that assessee has been running this business since a long. The assessee’s books of account are not rejected, therefore, without rejecting the books of account, the AO cannot make the addition based on the estimate or based on ad hoc. Apart from this, the Ld. AR for the assessee also submitted that without purchase, the sales cannot be made. Here, the sales done by the assessee has not been disputed by the AO. Since the sale has not been disputed by the AO, the purchases done by the assessee are definitely genuine. The AO did its own estimate without examining the books of account and vouchers. Moreover, the purchases were made by the assessee through account payee cheque, ledger accounts and the cash book and the bank book also show the evidence regarding the amount paid by the assessee. Besides, the party from whom the assessee has purchased the goods has also been in existence since a long and its accounts were audited by the Chartered Accountant and the Tax Audit Report was submitted by the assessee of the party to whom he purchased the goods. Therefore, the purchases have been done by the assessee by taking the invoice bills and goods receipts and duly recorded in the stock register of the assessee. The assessee paid the amount by cheque. Therefore, considering the factual position, the identity, genuineness and creditworthiness of the parties from whom the assessee has purchased the goods has been established. Therefore, we do not hesitate to confirm the order passed by the ld. CIT(A).
4.4 In the result, the Appeal filed by the Revenue, is dismissed.
The Cross Objection filed by Assessee is in support of the order of Ld. CIT(A). Since we uphold the order of Ld. CIT(A) in dismissing the Revenue’s appeal and the Cross Objection filed by assessee is in support of the order of CIT(A), therefore, we dismiss the assessee’s Cross Objection being infructuous.